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Key questions about Doug Ford’s planned use of the so-called notwithstanding clause

Toronto’s municipal elections were thrown into chaos once more, after a judge ruled Monday that Ontario Premier Doug Ford’s plan to cut the size of city council nearly in half, was unconstitutional, a ruling Ford then sought to counter.

Ford said he would use the “notwithstanding” clause of Canada’s Charter of Rights and Freedoms to do an end-run around the court ruling.

Premier Doug Ford, speaking at a news conference in Toronto Monday with Municipal Affairs Minister Steve Clark, announced he is taking an unprecedented step, invoking the province's powers and using the "notwithstanding" clause to override a court decision that shut down his plans to cut the size of Toronto's city council. (Andrew Francis Wallace / Toronto Star)

The clause allows the provinces or Ottawa to ignore fundamental charter rights and pass laws that trump them.

Questions linger about Ontario’s first-ever use of the clause.

Here’s what we know about Ford’s invocation of it:

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Can he just do this? Yes. The clause was specifically designed to let provincial or federal governments overrule charter rights that conflict with their agendas.

It was introduced in 1981 as a compromise to satisfy provinces, namely Saskatchewan and Alberta, whose premiers feared the charter could lead to judicial overreach.

So what’s next? A new Bill 5, retabled as Bill 31, and called the Efficient Local Government Act now, instead of the Better Local Government Act, was introduced Wednesday by Ford’s government containing the notwithstanding clause.

It will follow the normal route of a bill passing into law. But it needs to pass by Oct. 22, as the clause cannot be applied retroactively, said Carissima Mathen, a professor of law at the University of Ottawa.

Is the opposition going to try to stop him? NDP Leader Andrea Horwath has made her displeasure clear, and on Wednesday, led her party in a loud protest of the bill, with countless NDP members slamming their hands on their desks in a drum beat of defiance.

Horwath and many of the NDP members were kicked out of the legislature as a result. Some could be heard saying “shame,” to PCs as they were escorted out.

The following day, Horwath and the NDP changed their strategy, attempting to question the legitimacy of the legislation, instead. They appealed to Speaker Ted Arnott on two points of order: first, asking the Speaker to review whether the government is trying to bring in “substantially the same legislation twice” in the same session, which is not allowed; second, arguing that the bill should not be debated in the house, because it is still before the courts as the government appeals the judge’s decision.

It doesn’t appear there’s much the NDP can do to slow the legislation down, given the PC majority. But the clock is ticking.

What if enough PC MPPs vote against it? Technically, this would be possible. If 15 PC MPPs voted with all of the opposition members together (40 NDP, seven Liberal and one Green) against the bill, then it wouldn’t have the 63-seat majority support it needs to pass.

At the first reading Wednesday, this possibility seemed dashed; no Tory MPPs broke rank and voted against it.

Can the city do anything to stop it? Toronto will take the issue to the Supreme Court to fight the Premier’s notwithstanding clause, if necessary. On Thursday, city councillors voted 26-20, instructing the city’s lawyer to try any strategy to defeat the provincial legislation.

The council is calling on the Prime Minister to use federal power to shut down the provincial legislation. Trudeau said he has no plans to intervene in the crisis. The city wants the federal government to let it develop a “city charter” that would give cities authority over municipal elections, including how the council is structured. The move would probably require a constitutional amendment.

Will the election happen on time? This is where things get really confusing. A city spokesperson confirmed to the Star Monday that it would go ahead Oct. 22 as planned with 47 wards, according to Superior Court Justice Edward Belobaba’s ruling. But that was before Ford’s notwithstanding bombshell.

If and when Ford passes the revised Bill 5 with the clause, the wards will go back to 25.

It’s the third change for the clerk’s office since late July.

47 wards vs. 25

It’s unclear right now if it’s logistically possible to hold the election or its advance polling dates at the planned times.

City Clerk Ulli Watkiss told council on Thursday that she had brought in her own legal counsel to guide her, as she has responsibilities under the provincial legislation to conduct a legal election. She said that one of the questions she’d be asking legal counsel is whether she can push back the voting day.

The province’s Municipal Affairs Minister Steve Clark said he’s confident that the province will be able to work through election issues with the clerk’s office and hold an election on Oct. 22.

So how will I know what ward I’m in? The election under the Superior Court’s ruling will follow the 47-ward model. The 47-ward boundary came into effect after the city conducted a ward boundary review that concluded Toronto’s population had grown significantly enough that there was concern that value of a resident’s vote would not be equal across all wards. The city found that some wards had a population that was 30 per cent to 40 per cent above the ward average.

Ford’s bill calls for a 25-ward model that is based on the same boundaries set by federal and provincial electoral ridings, with minor differences given the shape of Toronto. The city has a list of ward divisions under the 25-ward model here. This version will come into effect if the revised Bill 5, which includes the notwithstanding clause, is passed.

Right now, the city’s official page says the ward maps for the 2018 election are “under review.” The city clerk said the office has printed two sets of voter information cards that are ready to be mailed, one set for each ward scenario.

Will candidates have time to register under the 25-ward map? After much confusion surrounding whether the nominations were already closed (potentially leaving out at least eight incumbent city councillors), legislation passed on Wednesday clarified that candidates will have two more days after the bill is passed to register for the new 25-ward city council election.

The revised bill is not expected to pass before Sept. 24. This would leave just 13 days at most between the close of nominations and the start of advance voting on Oct. 10.

However, advance voting itself might not be held, as the bill allows the city clerk the discretion to cancel it. Last election, a record 161,147 Torontonians used advance polls to vote.

Will the mayoral race be affected? It is sure to be a campaign issue — Jennifer Keesmaat and John Tory have both responded, and likely won’t stop talking about it anytime soon — but the race itself should go ahead as planned.

What’s Primer Minister Justin Trudeau doing? Could he step in? On Monday evening, Trudeau met with Mayor John Tory, who said he appreciated the prime minister’s “support for democratic principles, democratic institutions and the importance of respecting cities.”

Trudeau told reporters in Winnipeg Tuesday, it’s “disappointing” Ford plans to use the clause but suggested he won’t get involved.

The prime minister can’t really do anything about Ford’s plans, even if he wanted to.

Technically, the federal government has the power to “disallow provincial legislation in the national interest,” said Thomas S. Axworthy, former principal secretary to prime minister Pierre Trudeau.

This was used “extensively” by Sir John A. Macdonald to overturn provincial legislation. But it has not been used since 1943, Axworthy said, and it would take “something extraordinary for the feds to do this, only a national crisis of some kind.”

Using it now would trigger a real constitutional crisis, said University of Waterloo associate professor of political science Emmett Macfarlane, as the provision is widely seen as “spent”

“A spent constitutional provision is basically seen as dead, so not available for use, even though it’s still in the text,” Macfarlane said.

Ontario’s lieutenant-governor, who gives royal assent that makes bills laws, could refuse to do that, but that would also cause a constitutional crisis, Macfarlane said.

What’s next for Ford’s appeal? Ford has gone through with his Monday announcement to appeal the judge’s ruling, even though he’s overriding it with the notwithstanding clause.

The appeal was filed Wednesday. The province is also asking for a stay on the ruling, pausing the motion until the appeal is heard on Sept. 18.

The Court of Appeal still needs to agree to hear the case and set a hearing date, which would probably not happen before Oct. 22. If the stay is granted, the 25-ward election could proceed ahead of a hearing for the appeal.

But Alexandra Flynn, an assistant professor of human geography and city studies at the University of Toronto Scarborough, said it’s a “pretty high bar” to get a stay.

Regardless of the outcome of any appeal, or whether there’s a stay, the notwithstanding clause stands if invoked.

How else could this be reversed? A new provincial government could overturn the law. But that won’t be for at least another four years.

Otherwise the invocation of the notwithstanding clause has a five-year expiry date.

—With files from Alexandra Jones and Premila D’Sa

Jack Hauen is a breaking news reporter, working out of the Star’s radio room in Toronto. Follow him on Twitter: @jackhauen

May Warren is a breaking news reporter based in Toronto. Follow her on Twitter: @maywarren11

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